Insights IFPI, Impala and other representatives of creative and cultural sectors from across Europe express serious concerns over the Council of the EU’s general approach on the Digital Services Act


In an open letter to the Council, the broad coalition of organisations in the creative and cultural sectors in Europe, including music, audiovisual, literary and visual authors, as well as performers, book, music, scientific, technical, and medical publishers, together with recorded music, film and TV producers, sports rights owners, distributors and photo agencies, express concern that the general approach agreed by the Council (see item below) “fails to deliver on the DSA’s original objective of establishing more accountability for online platforms and creating a safer and more trustworthy online environment”.

In the signatories’ view, some of the modifications proposed would, in fact, have the exact opposite effect. They would weaken the current liability regime and have a detrimental impact on the existing standards and good practices for addressing illegal content and activities in some areas, including online infringements of copyright and related rights, they say.

The signatories draw attention to three specific issues:

  1. the introduction of a “safe harbour” for search engines alongside “caching” services in Article 4 of the DSA go against the EU’s general political commitment not to modify or broaden the liability limitations under the E-Commerce Directive; in the signatories’ view, the goal of increasing the accountability of search engines should be achieved through the introduction of effective due diligence obligations, not by making them beneficiaries of a broad and unjustified “safe harbour”; such new “safe harbour” would fall below several existing national measures and obligations and would remove all incentives for search engines to stop enabling access to illegal or harmful content, and make money on the back of such activity, they say;
  2. proposals establishing that intermediary services can continue to benefit from the “safe harbour” privileges even when they do not comply with their due diligence obligations would, according to the signatories, remove all real and impactful incentives for compliance with their obligations under the DSA; the signatories say that diligent behaviour is and should continue to be a factor to assess the eligibility for “safe harbours”; and
  3. the lack of ambition in setting truly effective due diligence obligations fails to reflect the broad scope of illegal activity that takes place online, the signatories say; in their view, extending the scope of application of the obligations to ensure the traceability of business users (“Know Your Business Customer”) is necessary to tackle the serious problem of illegal operators acting on a commercial scale and hiding behind false identities; there should also be more effective tools introduced when it comes to addressing rogue players, repeat infringers and systematic illegal activities; a meaningful mechanism for the enforcement of these obligations should be established to ensure that EU consumers have as little exposure as possible to illegal content, services, and products.

The signatories say that the EU has “a unique opportunity to create a secure, well-functioning online environment to improve consumer trust and enable our creative sector to grow in the EU Digital Single Market. It is therefore crucial for Member States, together with other co-legislators, to reassess the above-mentioned proposals”. To read the letter in full, click here.